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Nuclear Liability Bill in India: Some Exchange


From Sukla Sen

Dear Sadanand,

Thanks for your careful scrutiny.
As regards the caps on liability, the draft Bill provides that the "cap" for
a private "operator" is Rs 500 cr (adjustable to Rs 100 cr.) and that for
the Central Government, as an "operator" or even otherwise, it is 300
million SDR (equivalent to Rs. 2,100 cr approx.).

What the CNDP has demanded is: (i) raise the cap of the "operator" - private
or otherwise, from the current level of Rs 500 cr (adjustable to Rs 100
cr.) to 300 million SDR (equivalent to Rs. 2,100 cr approx.); (ii) remove
the cap on the liability of Central Government.
That is, if the liabilities arising out of an "incident" breaches the 300
million SDR mark (instead of Rs 500 cr (or Rs. 100 cr.) now proposed, the
Central Government will pick up the tab without any cap whatever.


The reasons for such moderation are twofold: tactical and substantive.
At the tactical level, the demands have no been made so radical that the
Standing Committee members reject these out of hand as impractical. So while
very substantive raises have been demanded, the basic (two-tier) framework
has not been rejected.
At the substantive level, nuclear industry is unique in that it hardly
enjoys the protection of insurance. So even if the private operator by
itself is to pick up all the liabilities without any cap, in case of
a catastrophic disaster it may go bankrupt and the victims would suffer.
(The BP must be having its assets adequately covered by insurance.)
*While formulating the CNDP proposals, the victims' interests have been kept
at the centre.*

In the same vein, *the most major flaw in the Greanpeace position is that it
completely overlooks the aspect that the Bill has been drafted
to facilitate ushering in of private players as "operators"*.
This is an open armed invite to disaster. Must be most resolutely countered.
The CNDP submission emphatically highlights this point. (Even during the
oral submission, this point was repeatedly made.)

Sukla

On 5 July 2010 18:58, SADANAND PATWARDHAN < This email address is being protected from spambots. You need JavaScript enabled to view it. > wrote:

>  Dear Karuna,
>
>
>
> I appreciate the wholesome background work your organization has done
> before formulating the stand you have taken. I have following points to make
> in this regard.
>
> 1.       First I understand, the Parliamentary sub-committee has asked for
> specific suggestions or comments on the Bill. Therefore, it would help if
> your position is formulated in terms of specific changes you are seeking in
> the bill; i.e. present wording of the clauses in the bill and the
> substituted wording you suggest. This would bring complete clarity to
> everybody as to what you seek.
>
> 2.       Owner/ Operator of the Nuclear Power Project is the prime mover
> who decides feasibility of his venture, obtains government approvals &
> permissions, ties up financing, does site selection, appoints consultants
> for design/ safety/ logistics/ & so on, is expected to perform statutory &
> non-statutory checks such as EIA/ Disaster Mitigation plans/ HAZOP at design
> stage etc., selection of suppliers & equipment, awarding of EPC for
> execution, obtaining necessary insurance covers during construction &
> running, and finally manages & runs the plant as a *profit making venture*.
> Operator is expected to know all the attendant problem areas, risks
> involved, cost cutting measures taken, interfaces between different systems
> in the plant and about which equipment supplier’s responsibility begins and
> ends where (*boundary conditions*), etc at every stage of project
> implementation and running. *At the procurement stage itself he can force
> the supplier/ designer/ consultant to reveal peculiarities of the services
> each one is peddling and negotiate appropriate back to back risk sharing
> contracts with each of them*. *This would happen only when the operator is
> properly incentivized by holding him  solely responsible as the custodian of
> the project from any claims that arise on account of it. It would also aid
> speedy settlement through a single window clearance of
> ‘Operator-Responsibility’.*
>
>
>
> Regards,
>
> Sadanand
>
>
>
> PS : Just now I noticed  a grave error I made when I was not careful in
> reading the provision suggested by Sukla’s Group : “*In case of an
> “incident” of exceptional gravity, the cap on the liability of the Central
> Government shall stand withdrawn through due notification by the Claims
> Commission*”.  It should read as, “*In case of an “incident” of
> exceptional gravity, the cap on the liability of the private operator &
> Central Government shall stand withdrawn through due notification by the
> Claims Commission*”. This is only fair as it would *force operator to
> account for attendant risks into his business model properly* and also *prevent
> socializing of the costs of a private venture*.  Otherwise it would be
> like giving a *carte blanche* to private nuclear industry (operator/
> suppliers, designers, financiers et al) by *capping their risks at 300
> Million SDR* *whatever the size of actual disaster*.
>
>
>
> If such a course is not possible for some reason, then I propose a *combination
> of Legal & Economic channeling* (thanks to the terms introduced by
> Karuna).
>
> 1.       If the Claims Commission assesses the actual damage to be less
> than or equal to 300 Million SDR, then only operator shall be responsible
> making good the loss speedily. This would be *capped Legal Channelizing
> for speedy relief*.
>
> 2.       If the damage is assessed beyond this limit, then all the private
> parties (suppliers/ designers/ contractors/ operators) will be responsible
>  jointly and severally for amount beyond SDR 300 million after fixation of
> responsibility (*unlimited economic channelizing for making good the
> losses in full*), but operator still pays speedily damages up to SDR 300
> million in any case.
>
> 3.       I have not considered second tier here, but it could be suitably
> incorporated provided *burden of risk is on the industry and not on the
> society*.
>
> 4.       Only when the operator/ Industry can’t physically pay out in full
> the compensation, should the government make good the shortfall.
>
> 5.       *Subsidizing the nuclear industry for private gains should never
> be allowed*.
>
>
>
>
>
> *From:* Sukla Sen [mailto: This email address is being protected from spambots. You need JavaScript enabled to view it. ]
> *Sent:* 05 July 2010 16:23
> *To:* nonuclear; ecological-democracy; This email address is being protected from spambots. You need JavaScript enabled to view it.
> *Subject:* Re: [NoNuclear] Fwd: [Arkitect India] Need your help
>
>
>
> Hi Karuna,
>
>
>
> Thanks for the response.
>
> I'm not too concerned about Greenpaece stand per se. That's evidently for
> the Greenpeace to decide.
>
> But as regards the issue, the point, to my mind, is rather simple
> and straightforward.
>
>
>
> *Unless there is a singular defined point who'd be held responsible in
> case of an "incident",* *what would be the plight of the poor and hapless
> victim(s)*? *That's the crux*, from my point of view.
>
>
>
> The relevant data/info would remain out of the reach.
>
> Even when the access is allowed (through some court intervention or
> whatever), it'd hardly make any sense without a high degree of technical
> expertise (theoretical knowledge + actual experience).
>
> And, if through some miracles, the access is granted and and some sense is
> made of the complex piles of data accessed, how on earth s/he/they will
> fix/pinpoint/apportion responsibilities without getting into interminable
> litigations?
>
>
>
> The playing field between the operator and suppliers (of equipment,
> materials and services) would, however, be far more levelled.
>
> And, the operator, having an unrestricted right of recourse will be pretty
> much equal to the task. Able to deploy a battery of star lawyers, if
> required. The info will be at its disposal only. And would be able to absorb
> the delay in decision without numbing difficulties.
>
>
>
> All these, to be sure, relate to "civil liability" only.
>
>
>
> As regards quick disbursals, as per the current draft, the AERB is to
> notify an incident, and the Claims Commission to decide/award on receipt of
> claims.
>
> The CNDP suggestions include points concerning them. (We've repeatedly
> circulated that.) But not "quick disbursal" per se.
>
> It'd be nice if you offer your ideas on specific improvements that should
> be suggested. There could be further actions on these.
>
> BTW, have you also a detailed list of specific suggestions? It'd be nice if
> you share.
>
>
>
> Sukla
>
> On 5 July 2010 14:51, Karuna Raina < This email address is being protected from spambots. You need JavaScript enabled to view it. > wrote:
>
> Dear Sadanand,
>
>
>
> I would not want us to change the reccomendation, its not because we are
> not flexible but because what we are proposing  makes the whole system of
> responsibility tighter.
>
>
>
> We arrived at this position not by just research on our part, but also
> after holding rigrous discussions with lawyers and also with international
> liability experts . Two of which(Antony Frogatt and Simon Carroll) have
> worked on official IAEA proccedings on Liability Consultations.
>
>
>
> Let me explain in detail:
>
> Much of law and practice around the world regarding nuclear liability and
> compensation can be traced back to the development of commercial nuclear
> power in the USA in the 1950s. Initially, the private sector was only
> willing to become involved in nuclear R&D if the US Atomic Energy Commission
> would include “hold harmless” clauses in the applicable contracts, thus
> channeling liability to the State. Beginning in 1954, however, the US
> government shifted third-party liability to the emerging nuclear industry.
> That move acted as a brake on private nuclear investment, because the
> insurance sector could not provide insurance on a normal commercial basis.
> In response, the Price-Anderson Act was passed in 1957, channeling liability
> to the operator and limiting that liability, while continuing to allow the
> supplier chain to be held liable (economic channeling).[1](Ameya: 2009)
>
>
>
> The Price-Anderson Act introduced “economic” channeling, which differs from
> the “legal” channeling
>
> that prevails in Canada, and is proposed in India in this Bill. The
> difference has been described as follows (ibid):
>
>
>
> *“In regimes of legal channelling, the operator is the only party which
> victims may legally*
>
> *hold responsible for a nuclear accident, i.e. no civil lawsuits may be
> initiated against any*
>
> *other party (suppliers, designers, constructors, etc.) and on any other
> civil basis than the*
>
> *channelling legal basis. Ordinary tort law is, in other words, set aside.
> This is so, even*
>
> *when the operator did not even remotely contribute to the nuclear
> accident. Moreover,*
>
> *unless a contract expressly states otherwise, the operator does not have
> a right of*
>
> *recourse against these other parties and fully bears the financial
> liability burden of a*
>
> *nuclear accident vis-à-vis third parties.*
>
> *In systems of economic channelling, victims can initiate civil lawsuits
> both against the*
>
> *operator and against any of the other parties involved (suppliers,
> designers, etc.) in line with*
>
> *ordinary tort law. However, the operator, whose insurance needs to cover
> the other parties´*
>
> *third party liability as well (i.e. an “omnibus coverage” or “umbrella
> insurance”), ultimately*
>
> *needs to indemnify these parties. The result is similar to legal
> channelling in that the operator*
>
> *bears the financial liability burden of the nuclear accident vis-à-vis
> third parties. However,*
>
> *economic channelling leaves the legal reality unscathed and does not set
> ordinary tort law*
>
> *aside, whereas legal channelling distorts the underlying legal
> construction and sidesteps*
>
> *ordinary tort law. The functioning of economic channelling is best
> illustrated by the Three*
>
> *Mile Island accident of 1979, where all defendants – the operator, the
> designer and the*
>
> *constructor of the plant – were represented by a single law firm.”*
>
> * *
>
> In the late 1950s, US firms began exporting nuclear technology and
> materials to the emerging nuclear industry in Europe. They became concerned
> about their potential liability for damage arising from a nuclear incident
> in Europe. That concern was resolved by successfully promoting legal
> channeling as the basis of the 1960 Convention on Third Party Liability in
> the Field of Nuclear Energy (Paris Convention), which determined nuclear
> liability regimes in Europe. US nuclear suppliers also successfully promoted
> legal channeling as the basis of the 1963 Vienna Convention on Civil
> Liability for Nuclear Damage (Vienna Convention). Western European nuclear
> suppliers subsequently promoted legal channeling as the basis for nuclear
> liability regimes in Eastern Europe, to facilitate their exports to that
> region*. *
>
> * *
>
> This history has been summarized as follows:
>
>
>
> “Put simplistically, legal channelling was introduced in the legal systems
> of Western Europe by the Paris Convention under US pressure and in the legal
> systems of Eastern Europe by the Vienna Convention under Western-European
> pressure.”(Ameya:2009).
>
>  Since, the objective of the Indian bill is to provide speedy compensation
> to the victims, for that the Indian bill should go for economic channeling
> of liability.
>
> Your other point about costly litigation and all that is taken care of,
> since in economic channeling the operator is liable and pays without buck
> passing on supplier, to this we have also reccomended that the bill proposes
> a mechanism of disbursing money quickly for compensation because even if we
> keep the status-quo (what sukla is suggesting)the bill does not provide any
> mechanism of speedy disbursal of funds.
>
>
>
>
>  ------------------------------
>
> [1] Evelyne Ameye, “Channelling of Nuclear Third Party Liability towards
> the Operator: is it Sustainable in a Developing Nuclear World or is there a
> Need for Liability of Nuclear Architects-Engineers?”, paper for the Nuclear
> Inter Jura Congress, Toronto, 5-9 October 2009.
>
>
>
> regards
>
>
>
> karuna
>
>
>
> On Mon, Jul 5, 2010 at 12:25 PM, Sukla Sen < This email address is being protected from spambots. You need JavaScript enabled to view it. > wrote:
>
>
>
> ---------- Forwarded message ----------
> From: *SADANAND PATWARDHAN* < This email address is being protected from spambots. You need JavaScript enabled to view it. >
> Date: 5 July 2010 10:50
> Subject: RE: [Arkitect India] Need your help
> To: This email address is being protected from spambots. You need JavaScript enabled to view it.
>
>
>
> I saw the petition put forward by Green Peace. At one point it says, “*The
> bill lays down for legal channeling of liability according to which only the
> operator is responsible in case of a nuclear accident. No civil suits can be
> initiated against the suppliers or any other person for faulty design or
> faulty construction. However, countries like the United States lay down for
> the economic channeling of liability, which makes it possible for law suits
> to be initiated against anyone in the entire supply claim*”.
>
>
>
> Sukla Sen had in fact pointed out that this may actually be a good
> provision as there would be a single agency which is held responsible and
> this would avoid time consuming, highly expensive and wearisome litigation
> on complex issues such as who is responsible for what and then apportion
> accountability.  I agree with him. However, bill should provide both
> explicitly and categorically for Operator’s right to hold suppliers fully
> responsible for the equipment they supply &  ask suppliers to give an
> undertaking to the operator to indemnify & pay compensation to the extent of
> their culpability in case of a “Nuclear Accident”.
>
>
>
> He had also sent a draft letter (*
> http://groups.yahoo.com/group/arkitectindia/message/8232*) that we could
> study, send as it is, or amend suitably and send. I did that with following
> two changes.
>
>
>
> Added an Introduction at the beginning :
>
> “The *capping of liabilities* in case of *industrial catastrophes* *externalizes
> major costs* of projects that are actually *intrinsic to their nature &
> operations. *This unfairly puts the *burden of mitigating the effects* of
> *Hazardous Undertakings* on the *society at large* or worse still, *passes
> such burden to future generations*. If such costs were to be *fully
> accounted for* & *factored into project feasibility studies*, then it
> would become crystal clear that the *total costs of such projects far
> outweigh the potential benefits*. While in the context of present economic
> model that we have, there is an acute need for energy, fortunately there are
> better technologies (*Photovoltaic/ Wind/ Tidal/ Micro-hydel* etc.)
> already available that would generate comparatively cheaply the required
> energy much faster & in a more eco-friendly manner. Another option is of
> achieving energy efficiency – Energy saved = Energy Generated (*see
> calculations here<http://satark.blogspot.com/2009/05/milon-ag-wip-to-led.html>
> *). For instance, by replacing all the *GLS lamps* in the country with *LED
> lamps,* one would be able in *less than 2 years* to generate (save) *31,000
> Giga Watts Hours of energy/ Annum* at *one sixth the cost of building an
> equivalent Atomic power plant*, which in any case won’t be ready *until 8
> to 10 years*. Considering all these issues, *government should shun the
> proposal of Subsidizing Atomic Power through capping of liabilities*.”
>
>
>
> And added a note Under section ‘III”,  point 6 :
>
> “*Every supplier should give an undertaking to the operator to voluntarily
> subject himself to the provisions of this clause/ act*”.
>
>
>
> I believe the Standing Committee of parliament has asked for suggestions &
> comments, which Sukla’s draft letter provides. Green Peace therefore may
> consider modifying the draft letter if required, and  use their formidable
> campaigning skills to have as many people they can muster even at this late
> stage to send it in their names to the Standing Committee.
>
>
>
> Regards,
>
> Sadanand
>
> +91 99 234 24 661.
>
>
>
>
>
> *From:* This email address is being protected from spambots. You need JavaScript enabled to view it. [mailto:
> This email address is being protected from spambots. You need JavaScript enabled to view it. ] *On Behalf Of * This email address is being protected from spambots. You need JavaScript enabled to view it.
> *Sent:* 03 July 2010 18:50
> *To:* This email address is being protected from spambots. You need JavaScript enabled to view it.
> *Subject:* [Arkitect India] Need your help
>
>
>
>
>
> Hi arkitectindia,
>
> This is exciting! Along with 187,759 people I signed a petition asking the
> Prime Minister to hold a public consultation before taking a decision on the
> nuclear liability bill. These petitions were delivered to the Standing
> Committee looking at the bill and now they have decided to hold a public
> consultation.
>
> The bill in its current form lets the foreign corporations get away by
> paying a meagre amount in case of a nuclear accident in India. The major
> chunk of the expenses will be borne by the Indian tax payers. But now we
> have a chance to change this bill and make it stronger.
>
> Greenpeace, an NGO working on this issue, has prepared an open letter which
> states the changes required in the bill. Just like the petition, this letter
> will stand a chance of being considered if lots of us sign it. We have less
> than two weeks to change the bill and prevent another Bhopal in the making.
>
> I have already added my signature.
>
> Can you add your signature to this letter?
>
> http://www.greenpeace.org/india/change-the-liability-bill<http://www.greenpeace.org/india/change-the-liability-bill?tyf=1>
>
> Thanks!
>
> This email address is being protected from spambots. You need JavaScript enabled to view it.
>
> You are receiving this email because someone you know sent it to you from
> the Greenpeace site. Greenpeace retains no information about individuals
> contacted through its site, and will not send you further messages without
> your consent -- although your friends could, of course, send you another
> message.
>
>
>
> *
> *
> ------------------------------
> *Sukla Sen < This email address is being protected from spambots. You need JavaScript enabled to view it. >**4 July 2010 07:41*
> To:
> Dear Friends,
>
> Reproduced below is a sample letter, which one may directly mail to <
> This email address is being protected from spambots. You need JavaScript enabled to view it. <http://in.mc953.mail.yahoo.com/mc/compose?to= This email address is being protected from spambots. You need JavaScript enabled to view it. >>
> to lodge one's objections by 9th instant.
>
>
> Just to recall, the Parliamentary Standing Committee which is now
> examining the 'Civil Liability for Nuclear Damage Bill 2010' has, through a
> public notification, asked for comments from the public on the Bill by July
> 9.
>
> Sukla
>
> To
>
> Dr. T. Subbarami Reddy,
>
> The Chairman,
>
> Parliamentary Standing Committee on Science & Technology, Environment &
> Forests,
>
> New Delhi
>
>
>
> Sub: Submission on 'Civil Liability for Nuclear Damage Bill 2010'
>
> Ref.: Public Notification dated June 24 2010 (Re.: <
> http://164.100.47.5/newcommittee/press_release/press/Committee%20on%20S%20and%20T,%20Env.%20and%20Forests/PRESS%20Release_English_.pdf
> >)
>
> Sir,
>
>
>
> Pursuant to your public notification inviting comments from the members of
> the general public, the following submission is made.
>
> The submission is divided into two parts: one, the background/explanatory
> notes/comments; *two*, *updated list of specific suggestions*.
>
>
>
> *I. Background Note.*
>
> *The defining features of the Bill*, to our understanding, *are as under:*
>
>
>
> *One*, it is an attempt to enact a law defining and tackling civil
> liability for nuclear damage, which does not obtain as of now, to facilitate
> participation of foreign players in Indian nuclear market.
>
>
>
> *Two,* the Bill is also a move towards joining the Convention on
> Supplementary Compensation (CSC) regime by enacting a law in alignment with
> that.
>
>
>
> *Three*, the Bill is a stepping stone to ensure entry of private players,
> whether foreign or indigenous, as "operators", as had been demanded by the
> FICCI in its June 2009 Report.
>
> But the Bill proposes to go way beyond the CSC framework to roll out a red
> carpet for the prospective private players to assume the mantle of
> "operator".
>
>
>
> *Our major concerns*, in brief, *are as under:*
>
>
>
> *A*. The entry of private players as "operators" is too dangerous given
> the unique nature of nuclear power industry and its catastrophic potentials,
> as chillingly illustrated by the Chernobyl Disaster on April 26 1986. The
> fact is that profit maximisation is the very *raison d'etre *of a private
> enterprise giving rise to the consequent innate tendency to cut corners in
> terms of safety measures. Regulatory mechanisms can at best only “regulate”.
> Hence, the envisaged ushering in of private players as “operators” of
> nuclear power plants is an open invitation to disaster.
>
> What is of great relevance here is that the CSC framework in no way obliges
> the country to open doors to private players, foreign or indigenous, as
> “operators” of nuclear power plants.
>
>
>
> *B*. There must not be any overall "cap" on the quantum of compensation to
> potential victims. That is too unjust and inhumane. It has to relate to the
> actual damages caused. The overall “cap” of 300 million SDR, which works out
> to about 460 million US$, is even lower than the compensation amount of US$
> 470 million ratified by the Indian Supreme Court to the victims of Bhopal
> Gas Disaster way back in 1989.
>
> The CSC, again, does NOT so obligate. It actually allows for a three-tier
> compensation regime. Up to a limit, or “cap”, of 300 million SDR, in the
> first tier, to be paid by the “operator” or the national government, as per
> the law of the land. Then another tier, to a further 300 million SDR or so
> to be drawn from the common pool of funds maintained by the CSC. And then
> the national government may, at its own option, pay even beyond the upper
> limit of this second tier limit without any “cap” whatever.
>
>
>
> *C*. The Bill pegs the “liability” of the private “operator” at Rs. 500
> crore per incident, with the further proviso to lower it down to even
> paltrier Rs. 100 crore. And the state, i.e. the Indian taxpayers/citizens,
> will have to pay, in case of an accident in a privately operated nuclear
> power plant, the amount of “liability”, i.e. compensations for damages,
> exceeding the “cap” for a private "operator" subject to the overall limit of
> 300 million SDR.
>
> Even in this case, The CSC does NOT obligate to peg the "cap" for the
> "liability" of any "operator" any lower than 300 million SDR, which amounts
> to around Rs. 2,100 crore or 460 million US$. And while the CSC obligates
> that there must be a cap of 300 million SDR, it does not envisage any
> overall cap on the compensation to be made available to the victims by a
> member nation.
>
> This is evidently a brazen attempt to favour private enterprises at the
> cost of Indian citizens. And a lower “cap” for a private “operator” would
> only further strengthen its intrinsic propensity to cut corners in the realm
> of “safety”, with nightmarish prospects.
>
> *II. Specific Suggestions (Updated – based on oral presentation on 24 06
> 2010)*
>
> * *
>
> *Contentious Clauses*
>
> Draft Bill Provides
>
> *Suggestion/Amendment*
>
> Explanation/Comment
>
> 1.
>
> *Atomic Energy Regulatory Board to notify incident*
>
> * *
>
> *(Chapter II, Cl. 3)*
>
> * *
>
>
>
> * *
>
> *Any private citizen, or group, will have the right to draw the attention
> of the AERB to an alleged “incident’ in case it is not notified by the AERBsuo
> moto. The AERB shall duly examine and respond to such request.*
>
> The AERB must be made autonomous of the DAE. Its functioning must be
> monitored by an independent experts’ body.
>
>
>
> 2.
>
> *Channelising the liability to “operator”.*
>
> * *
>
> *(Chapter II, Cl. 4 (1))*
>
>
>
>
>
> The operator for the nuclear installation shall be liable for nuclear
> damage …
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> To be further added:
>
> *The operator shall deposit a sum of 300 million SDR in an escrow account
> for each nuclear reactor to be operated before start of operation.*
>
> This is a welcome provision as otherwise there would be no pre-designated
> (singular) source from which the compensations for the victims to be
> obtained. And the whole process could turn utterly cumbersome and lengthy.
>
> *However, there must be adequate provisions for the operator to claim
> compensations, in turn, from the supplier/designer/consultant etc., as the
> case may be, without diluting its liability to the victims.*
>
>
>
> This will eliminate much of possible complications in the event of an
> “incident”.
>
>
>
> 3.
>
> *Exceptions to the operator as regards liability*
>
> * *
>
> *(Chapter II, Cl. 5(1) i & ii)*
>
>
>
>
>
>
>
> “grave natural disaster …”
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> The list of exceptions, under Cl. 5(*1*) (*ii*), includes “terrorism”.
>
>
>
>
>
>
>
>
>
> *To be dropped in entirety.*
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> *To drop “terrorism” from the list.*
>
>
>
> * *
>
>
>
>
>
>
>
>
>
>
>
> The corresponding CSC clause - Annex, Article 3, 5. b. - provides that
> national law may have provision to drop such circumstances from the list of
> exceptions.
>
>
>
> It does not figure in the corresponding CSC clause: Annex, Article 3, 5. a.
>
>
>
> The concept of “strict liability” being the foundational concept, such
> exceptions, and consequent transfer of liability for damage under such
> circumstances to the “Central Government”, and thereby to the Indian
> taxpayers, in case of a private operator, is wholly undesirable and
> unjustified.
>
>
>
> 4.
>
> A.
>
> *The total cap on liability*
>
>
>
> *(Chapter II, Cl. 6(1)*
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> B.
>
> *Limits of liability of a (private) operator*
>
> *(Chapter II, Cl. 6(2) and 7(a) and (c))*
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> C.
>
> *Cl. 6. (2), para 4*
>
>
>
>
>
> The maximum amount of liability in respect of each nuclear incident shall
> be the rupee equivalent of three hundred million Special Drawing Rights.
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
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>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> Rs.500 crore as operator liability ceiling, with a provision for reduction
> to Rs. 100 crore.
>
> The balance, if any, up to 300 million SDR to be paid by the Central
> Government.
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> Provided also … cost of proceedings.
>
>
>
> * *
>
> *In case of an “incident” of exceptional gravity, the cap on the liability
> of the Central Government shall stand withdrawn through due notification by
> the Claims Commission.*
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> *This provision to be dropped.*
>
> *The operator is to be held liable for compensation up to 300 million SDR,
> as in case of the Central Government as operator under Cl. 7 (b).*
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> *Cl. 6 (2), para 2 & 3 shall be deleted, in any case.*
>
> * *
>
>
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
> * *
>
>
>
>
>
> To be amended as:
>
> *Provided also that the amount of liability as provided above is exclusive
> of any interest or cost of proceedings.*
>
> * *
>
> There must not be any cap on total liability.
>
> This, by the way, does not contradict the provisions of the CSC.
>
>
>
> Three hundred million SDR (equivalent to about US $ 450 million, depending
> on the exchange rate obtaining)  is, in any case, too paltry.
>
> In case of Bhopal gas disaster, the compensation amount settled (to be paid
> by the UCC) back in 1989 was 470 million US $. That was pretty much
> inadequate.
>
> In case, of oil spill in the Gulf of Mexico, the BP has committed an*
> initial *amount of US $ 20 billion. And there will be no cap. In the US,
> in case of a nuclear accident, the first 300 million US $ to come from the
> respective insurance cover, then up to US $ 10 billion from a common pool of
> funds maintained by the nuclear industry. Beyond that, the Federal
> Government, without any cap. (Ref.: P. 2/4 of ‘The Price-Anderson Act:
> Background Information: November 2005’ at <
> http://www.ans.org/pi/ps/docs/ps54-bi.pdf>.)
>
>
>
> No lower limit of liability for (private) operator.
>
> Clauses (6 & 7, in particular) to be modified accordingly.
>
>
>
> The Convention for Supplementary Compensation (CSC) *does not obligate* the
> GoI to go in for such differentiated liabilities, one for private operator
> and another for the state affiliated operator.
>
>
>
> The discretionary provision for lowering the limit any further (to Rs. 100
> crore), under Cl. 6 (*2*), para 3, is utterly unjustified. That makes
> nonsense of the “cap” of Rs. 500 crore. And the whole process of determining
> the “cap” appears to be entirely *discretionary*.
>
> *5.*
>
> *Claims Commission*
>
> * *
>
> *(Chapter III, Cl. 9 (2))*
>
>
>
> * *
>
> *The Claims Commission must include member(s) of the medical profession
> with an established track record of engaging with people’s health issues to
> ensure the proper assessment of the health impact of an “incident”.*
>
>
>
>
>
> 6.
>
> *Operator’s “right of recourse”*
>
> *(Chapter IV, Cl. 17 (a), (b) and (c))*
>
>
>
>
>
>
>
>
>
> To be added:
>
> *The contract between any and every operator and its supplier(s) (of
> equipment, material or services, as the case may be) must include in writing
> a provision to the effect that the operator shall have the right of recourse
> in case of an “incident” without any exception, including as regards the
> damage to the equipment/plant/site.*
>
>
>
>
>
> The reported move of dropping the Cl. 17 (b) is utterly objectionable, as
> explained above (at entry 2).
>
>
>
>
>
> This will make the supplier all the more cautious about the quality and
> when the Central Govt. is the operator it will not be able to waive the
> right of recourse clause under the pressure of lobbying or whatever.
>
> This evidently will benefit the Indian taxpayers in case of an “incident”.
>
>
> 7. A.
>
> *Extinction of right to claim*
>
> *(Chapter IV, Cl. 18)*
>
>
>
>
>
>
>
>
>
>
>
> B.
>
> The right to claim compensation for any nuclear damage caused by a nuclear
> incident shall extinguish if such claim is not made within a period of ten
> years from the date of incident notified …
>
>
>
> (Para 2)
>
> Provided that where a nuclear damage is caused  …. But, in no case, it
> shall exceed a period of twenty years …
>
> The limit of 10 years is too short.
>
> To be made 30 years at least.
>
>
>
> .
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> *Under such circumstances, the Central Government must duly examine a
> claim and pay appropriate compensation by routing the case through the AERB.
> *
>
> This would, however, be a departure from the norms of the CSC
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> It means that in case of a damage arising out of a nuclear incident caused
> by some nuclear material stolen more than twenty years back, the victim will
> have no right to any compensation.
>
> That is totally unacceptable.
>
>
>
> 8.
>
> *Exclusion of jurisdiction of civil courts*
>
> *(Chapter V, Cl. 35)*
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> *While no civil court must have any right to intervene in the conduct of
> proceedings by the claims commission and ready implementation/enforcement of
> its award/order, much as in case of the Election Commission; there must be
> provision to for appeal to an appellate authority – High Court or Supreme
> Court, without affecting the immediate implementation/enforcement of the
> award/order by the claims commission.*
>
>
>
> Otherwise, it would be violation of natural justice.
>
>
>
>
>
> 9.
>
> *Offences and penalties (Chapter VI, Cl. 39 (1))*
>
>
>
>
>
> … shall be punishable with imprisonment for a term which may extend to five
> years or with fine or both.
>
>
>
> * *
>
> To be amended as:
>
> shall be punishable with imprisonment for a term which may extend to ten
> years, with or without fine.
>
>
>
> * *
>
> The provision for penalty for not complying with the award, Cl. 36 (1) (b),
> for example, is too paltry.
>
> In any case, this is only*maximum*.
>
> And, the provision for imprisonment must not be substitutable by fine.
>
>
>
> 10.
>
> *Offences by companies (Chapter VI, Cl. 40 (1), para 2)*
>
>
>
>
>
>
>
> Provided that nothing contained in this sub-section shall render any such
> person liable to any punishment under this Act, if he proves that offence
> was committed without his knowledge or that he exercised all due diligence
> to prevent the commission of such offence.
>
> * *
>
> * *
>
> This has to be amended as:
>
> *Provided that nothing contained in this sub-section shall render any such
> person liable to any punishment under this Act, if he proves he exercised
> all due diligence to prevent the commission of such offence.*
>
> * *
>
> *“that offence was committed without his knowledge or”: to be deleted.*
>
> This clause, in its present form,violates the principle of command
> responsibility and thereby would ensure that minions are punished in case of
> violations and senior officers go scot free.
>
>
>
> 11.
>
> *Immunity to**Central Government and its employees*
>
> *(Chapter VII, Cl. 47)*
>
>
>
>
>
>
>
> No suit … thereunder.
>
>
>
>
>
> *This is to be dropped in entirety.*
>
>
>
>
>
> No such immunity in operating a nuclear plant/installation is called for.
> Such immunity will only engender criminal negligence and worse.
>
> 12.
>
> *Power to remove difficulties*
>
> *(Chapter VII, Cl. 49 (1), para 2)*
>
>
>
>
>
>
>
>
>
> Provided that no order shall be made under this section after the expiry of
> three years from the commencement of this Act.
>
>
>
>
>
>
>
> *This para is to be dropped in its entirety.*
>
>
>
>
>
>
>
>
>
>
>
> If the Indian Constitution needs be amended even after sixty years of
> coming into force, why the limit of “three years” here?
>
>
>
>
>
> 13.
>
> *General point*
>
> *Compensation for environmental damage*
>
>
>
>
>
>
>
> Any public spirited group or citizen, apart from public bodies like Gram
> Sabha, panchayat, municipality etc. and affected persons, must be entitled
> to raise such claims.
>
> There must be a clear provision towards that.
>
> And, also who will receive such amount?
>
>
>
> Under “Definitions” (ref. Chapter I, Cl. 2 (f) (iv), “nuclear damage”
> covers “impaired environment”.
>
> It is, however, not provided who can lodge claims for “costs of measures of
> reinstatement” as mentioned therein.
>
>
>
>
>
> Thanking you,
>
>
>
>
>
>
> Date: .. 07 2010
>
>
>
> Cc.: Members of the Standing Committee:
>
>
>
> Members from the Rajya Sabha:
>
> 1. Shri S S Ahluwalia
>
> 2. Shri Rajiv Pratap Rudy
>
> 3. Shri Anil H. Lad
>
> 4. Shri Ramachandra Khuntia
>
> 5. Prof. Ram Gopal Yadav
>
> 6. Dr. Ejaz Ali
>
> 7. Dr. Barun Mukherjee
>
> 8. Shri Saman Pathak
>
> 9. Shri Jabir Husain
>
>
>
> Members from the Lok Sabha:
>
> 1. Dr. Rajan Sushant
>
> 2. Shri D.V. Sadananda Gowda
>
> 3. Shri C. R. Patil
>
> 4. Smt. Kamla Devi Patle
>
> 5. Shri Yashwant Sinha
>
> 6. Shri Mansukhbhai D. Vasava
>
> 7. Kaisar Jahan
>
> 8. Shri Bibhu Prasad Tarai
>
> 9. Shri S.S. Ramasubbu
>
> 10. Shri Pradeep Tamta
>
> 11. Shri Francisco Sardinha
>
> 12. Shri Ninong Ering
>
> 13. Dr. Charan Das Mahant
>
> 14. Shri Gajendra Singh Rajukhedi
>
> 15. Shri Akhilesh Yadav
>
> 16. Dr. Ranjan Prasad Yadav
>
> 17. Shri Udyanraje Bhonsle
>
> 18. Shri Jayaram Pangi
>
> 19. Shri A. Ganeshamurthi
>
> 20. Dr. Mirza Mehboob Beg
>
> 21. Shri K.C. Singh Baba
>
> and
>
> Secretary to the Standing Committee, Mr. JP Sharma.
>